EXCHAlsTGl OF SCHOOL LANDS 
Report from the Coiomittee on 
the Public Lands, April 17, 
1912. 




Glass UBa^ 8.7 
Book '^ ^ 



62d Congress, ) HOUSE OF REPRESENTATIVES, j Report 

9A Session. \ \ No. 566. 



EXCHANGE OF SCHOOL LANDS. 



April 17, 1912.— Committed to the Committee of the Whole House on the state of the 
Union and ordered to be printed. 



Mr. Raker, from the Committee on the Public Lands, submitted the 

following 

REPORT. 

[To accompany H. R. 19344.1 

The Committee on the Pubhc Lands, to whom was referred the 
bill (H. R. 19344) to authorize the Secretary of the Interior to 
exchange lands for the school sections within an Indian, mihtary, 
national forest, or other reservation, and for other purposes, having 
had the same under consideration, report it back with the following 
amendments : 

Page 2, in line 2,. strike out the word "made" and substitute there- 
for the word ''approved." 

Page 2, lines 3 and 4, strike out the words "upon approval of such 
exchange" and also the comma after the word "exchange." 

Page 2, add after line 4 the following: ''Provided, That uponcom- 
pletion of the exchange the lands relinquished, reconveyed, or assigned 
as base lands which fall within the exterior boundaries of a national 
forest shall immediately become a part of the national forest within 
which they are situated," and change the period to a semicolon after 
the word "State," at the end of line 4 on page 2. 

This legislation is recommended by the Department of the Interior, 
the Department of Agriculture, and the Department of Justice. 
Also the authorities of the State of California, and also by the legis- 
lation of the State of California, which is for the purpose of carrying 
out an adjustment and settlement had between the Land Department 
and the authorities of the State of California, confirmed by the legis- 
lation of that State. This legislation appears to be necessary and is 
urged by the Department of the Interior as well as the authorities of 
the State of Cahfornia, as will appear from the hearings had before 
the committee. The committee has had full hearings upon this 
matter, which have been printed. 

The report of the Department of the Interior, the Department ot 
Justice, and the Department of Agriculture, and a copy of the act of 

Pil!kUlB|ll|P 



2 EXCHANGE OF SCHOOL LANDS, >^ -■>'• 



^•v< 



legislation of the State of California and the report of the attorney 
general and the surveyor .o;eneral of the State of California foUow: 

[H. R. 19344, Sixty-second Congress, second session.] 

In the House of Representatives. 

February 2, 1912. 

Mr. Raker introduced the following bill; which was referred to the C'ommittee on 
the Public Lands and ordered to be printed. 

A BILL To autSorize theSecretary of the Interior to exchange lands for school sections within an Indian, 
military, national forest, or other reservation, and for other purposes. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That the Secretary of the Interior be, and he is hereby, author- 
ized to make exchange of lands with the several States for those portions of the lands 
granted in aid of common schools, whether surveyed or unsurveyed, which lie within 
the exterior limits of any Indian, military, national forest, or other reservation, the 
said exchange to be made in the manner and form and subject to the limitations and 
conditions of sections twenty-two hundred and seventy-five and twenty-two hundred 
and seventy-six of the Revised Statutes, as amended by act of February twenty-eighth, 
eighteen hundred and ninety-one (Twenty-sixth Statutes, page seven hundred and 
ninety-six), and any such exchange whether heretofore or hereafter made shall restore 
full title in the United States to the base land, upon approval of such exchange, with- 
out formal conveyance thereof by the State. 

By request, the chairman of the Public Lands Committee sub- 
mitted the matter to the Department of the Interior, and on Feb- 
ruary 19, 1912, Mr. Samuel Adams, Acting Secretary of the De])art- 
ment of the Interior, made the following report : 

Department of the Interior, 

Washington, February 19, 1912. 
Hon. Joseph T. Robinson, 

Chairman Committee on the Public Lands, House of Representatives. 

Sir: In response to your request for a report on House bill 19344, entitled "A bill to 
authorize the Secretary of the Interior to exchange lands for school sections within 
an Indian, military, national forest, or other reservation, and for other pm-poses," I 
have the honor to submit the following: 

It is understood that the bill was introduced at the instance of the officials of the 
State land department of the State of California for the pm-pose of and with a view 
to aiding the State in the adjustment of the grant to the State for common-school 
purposes, which has been in a very unsatisfactory condition and practically a state of 
suspension for several years. The provisions of the bill are largely declaratory of the 
act of February 28, 1891 (26 Stat., 796), amending sections 2275 and 2276 of the United 
States Revised Statutes, as construed and administered by the department for a 
number of years, but as framed expressly authorizes exchanges of lands whick are 
within the exterior limits of any Indian, military, national forest, or other reservation. 
It is also provided that any such exchange, whether heretofore or hereafter made, 
shall restore full title to the United States to the base land, upon approval of such 
exchange, without formal conveyance thereof by the State. 

School sections in national forests are now held to be subject to exchange under 
the provisions of the act of 1891, supra, as lands being otherwise reserved, whereas 
the bill expressly authorizes the exchange of such lands, whether surveyed or unsur- 
veyed, and vests title in the United States to such sections which have heretofore 
been used as base for selections made and approved to the various States. 

Under the act of 1891 as now administered the exchanges made thereunder are 
not complete and title to the tracts of land exchanged does not vest in the State until 
the approval thereof by the Secretary of the Interior and the subsequent certification 
of the selections to the State by the General Land Office. The title vests in the con- 
tracting parties upon the date of the certification and not on the date of the approval 
of the selections. 

As to the clause in the bill providing that no formal conveyance of the base tracts 
by the State to the United States be necessary to vest title, it may be stated that no 
such conveyances have been required by the department for a number of years. In 



\ ~J EXCHANGE OF SCHOOL LANDS. 3 

an opinion of the Assistant Attorney General of the department, dated January 26, 
1901 (30 L. D., 438), the deed of reconveyance was held not to be necessary, for the 
reason that the selection of indemnity of itself amounted to a waiver of the State's 
claim, or, in other words, operated to transfer the legal title of the State to the United 
States. 

In that opinion the right of the State to indemnity for school lands in forest reserves 
is dependent solely on the proposition that the selection of indemnity constituted a 
waiver of the State's claim and that Congress has full authority to declare what effect 
shall be given to such a selection, and no distinction could be based upon the fact 
that the title to the base lands had or had not vested in the State prior to the selection. 

There may have been some doubt heretofore as to the meaning of that clause of 
section 2275, Revised Statutes, under which exchanges of school lands between the 
several States and the United States are now effected. If any such doubt has existed, 
it will be conclusively removed should this bill be enacted into law, and for this 
reason I recommend that the bill be passed. 
Very respectfully, 

Samuel Adams, Acting Secretary. 

This matter was reported to the Attorney General, of the Depart- 
ment of Justice, and on February 7, 1912, he made a report thereon 
as follows : 

Department of Justice, 

Washington, February 7, 1912. 
Hon. Joseph T. Robinson, 

Chairman Committee on the Public Lands, House of Representatives . 

Sir: I have received your letter of February 3, 1912, inclosing for such suggestions 
and recommendations as may be deemed necessary a copy of H. R. 19344, Sixty- 
second Congress, second session, authorizing the Secretary of the Interior to exchange 
lands for school sections within Indian, military, and other reservations. 

This bill authorizes the Secretary of the Interior to make exchanges of lands with the 
several States for those portions of school sections, whether surveyed or unsurveyed, 
lying within the exterior limits of any reservation, the exchange to be made in the 
manner and form and subject to the limitations of sections 2275 and 2276 of the Revised 
Statutes, as amended by the act of February 28, 1891 (26 Stat., 796), and provides that 
£tny such exchange, whether heretofore or hereafter made, shall restore to the United 
States full title to the base land without any formal conveyance by the State. 

I have the honor to advise you that authority to make exchanges of school sections 
included within the exterior boundaries of reservations, prior to the survey of such 
school sections, already exists under the act of February 28, 1891, supra. The Depart- 
ment of the Interior also holds that authority likewise exists under the said act of 1891 
to make exchanges of school sections included within the exterior limits of reserva- 
tions even after the survey of such school sections (see 34 Land Decisions, 599, and 
cases cited), and I understand that many thousands of acres of such lands have been 
exchanged. However, it has been held by at least one Federal court that the act of 
1891 does not authorize a State to exchange school lands which had been surveyed 
prior to the creation of the reservation within the exterior limits of which the school 
section is embraced. (Hibbard v. Slack, 84 Fed., 579.) It would seem, therefore, that 
the enactment of some such legislation as that proposed in this bill will serve a useful 
purpose. 

Respectfully, Ernest Knaebel 

(For the Attorney General), 

Assistant Attorney General. 



Department of the Interior, 

Washington, April 17, 1912. 
Hon. John E. Raker, 

House of Representatives. 
Sir: At your instance I have carefully considered the committee's proposed amend- 
ment to H. R. 19344, being a bill to authorize the Secretary of the Interior to exchange 
lands for school sections within an Indian, military, national forest, or other reserva- 
tion, and for other purposes, which amendment proposes to change that portion of 
the bill which now reads "and any such exchange, whether heretofore or hereafter 
made, shall restore full title to the United States to the base land upon approval of 
such exchange without formal conveyance thereof to the United States," so as to read, 
"and any such exchange, whether heretofore or hereafter approved, shall restore full 



4 EXCHANGE OF SCHOOL. LANDS. 

title in the United States to the base land without formal conveyance thereof by the 
State." 

Now, in my opinion, the language employed in both instances means the same thing, 
but I rather incline to the committee's amendment because it is more direct and per- 
haps freer from doubt. Of course, no exchange is made until it is approved, and there- 
fore to have the bill provide that "any such exchange, whether heretofore or hereafter 
approved," is technically more correct, and when so changed renders the latter expres- 
sion "upon approval of such exchange" unnecessary. 

In this connection I have noted the objections to the proposed change made by the 
attorney general and surveyor general of the State of California. They seem to fear 
that any change in the bill as originally drawn may result in advantage to those seek- 
ing to force the State to make sale to them of base lands used in selections already made. 
I am free to say that I can not see how this amendment can have that effect. 

"The power of the Secretary to approve selections is judicial in its nature, and 
implies the duty to determine as of the time of filing the selection, and the doctrine 
of relation apjilies to decisions as to validity of such selections." (Syllabus, Wever- 
haeuser v. Hoyt, 219 U. S., 380.) 

The selections by the State have always been accorded segregative effect from the 
time of their filing and under the decision referred to, if approved, would have relation 
as of the time of filing. 

I do not see how more effective legislation could or should, be extended in behalf 
of the State of California than as hereinbefore indicated, with respect to its selections 
heretofore or hereafter made, and in conclusion must say that the committee's proposed 
amendment seems to be entirely satisfactory to the Government and is not shown to be, 
nor do I believe it will be, prejudicial to the interests of the State in the premises. 
Very respectfully, 

F. W. Clements, 
First Assistant Attorney. 

The following is a letter from the Department of Agriculture : 

United States Department op Agriculture, 

Washington, D. C, April 16, 1912. 
Hon. Jos. T. Robinson, 

Chairman Committee on Public Lands, House of Representatives. 
Dear Mr. Robinson: I am in receipt of your letter of April 10 inclosing a copy 
of the bill (H. R. 19344) introduced by Mr. Raker to authorize the Secretary of the 
Interior to exchange lands for school sections within an Indian, military, national 
forest, or other reservation, and for other purposes. 

By letter of February 15, 1912, to you, I reported upon this bill and submitted the 
recommendations of this department. Since my first letter has evidently not reached 
its intended destination, I inclose a copy of it for your information. 
Very sincerely, yours, 

James Wilson, Secretary. 

United States Department of Agriculture, 

Washington, D. C, February 15, 1912. 
Hon. Joseph T. Robinson, 

Chairman Committee on Public Lands, House of Representatives. 

Dear Mr. Robinson: Your letter of February 3 inclosing a copy of the bill (H. R. 
19344) to authorize the Secretary of the Interior to exchange lands for school sections 
within an Indian, military, national forest, or other reservation, and for other pur- 
poses, is received. 

The bill has been carefully considered in this department and it seems that it will 
not change the existing law with respect to State indemnity selections other than 
it is at the present time interpreted by the Secretary of the Interior, who has juris- 
diction to construe such matters. Its purport seems to be more in the nature of hav- 
ing Congress confirm what is being done under existing law. I would suggest, how- 
ever, that the following amendment be added at the end of the bill, to clearly define 
the status of the reconveyed or relinciuished lands of the State which fall within the 
boundaries of national forests: 

^'Provided, That upon completion of the exchange, the lands relinquished, recon- 
veyed, or assigned as base lands which fall within the exterior boundaries of national 
forests shall immediately become a part of the national forest within which they are 
situated." 

Very sincerely, yours, James Wilson, Secretary. 



EXCHANGE OF SCHOOL LANDS. 5 

A letter dated February — , 1912, by Mr. A. W. Sanborn, deputy 
surveyor general, upon this same subject. It is as follows: 

Washington, D. C, i^eftrwa?-?/ — ,1912. 
Hon. John E. Raker, 

House of Representatives . 

My Dear Sir: In connection with the draft of bill left with you yesterday, entitled 
"A bill to authorize the Secretary of the Interior to exchange lands for school sections 
within an Indian, military, national forest, or other reservation, and for other pur- 
poses," I wish to state that the measure is proposed at the earnest solicitation of the 
surveyor general and the attorney general of the State of California, and was drafted 
after consultation with officials of the Interior Department. 

Gen. Webb, Gen. Kingsbury, and myself are of the opinion that such legislation is 
desirable and important, in aid of the adjustment of the school grant concerning which 
a controversy has long existed. 

As you well know, nothing so retards the development of a State as uncertainty and 
litigation over land titles, and conditions in California in this respect have certainly 
been very distressing because of the long delay in the issuance of titles, or evidence 
of title, by the General Government. 

I am of the opinion that the measure proposed, if enacted, will expedite the adjust- 
ment of the difficulty now existing, and I solicit your earnest endeavor in its 
enactment. 

I inclose herewith, for your information, a copy of the basis of adjustment of the 
California school grant, agreed upon by officials of the Department of the Interior and 
the State authorities; also a copy of the recent act of the legislature, accepting the 
same and providing for carrying it into effect. 

Very respectfully, A. W. Sanborn. 

Some time in July or August, 1911, the attorney general of the 
State of California and the surveyor general of California appeared 
at Washington and had a conference with the United States Attorney 
General and also the Secretary of the Interior and the Commissioner 
of the General Land Office in regard to the lands in the State of 
California which are tied up and creating a great deal of trouble 
between those that claimed them — the State and others — and 
amounting to somewhere from 400,000 to 450,000 acres of land. 

This is the basis of adjustment. It reads as follows: 

BASIS OF ADJUSTMENT. 

(1) That there be paid to the United States, as under the provisions of the act of 
Congress approved March 1, 1877 (19 Stat., 267), |1.25 per acre in satisfaction of all 
excess certifications of indemnity school lands which occurred prior to the date of 
approval of said act, and for which said lands no payment has as yet been made to 
the United States. 

(2) That new and valid bases be designated by the State for all selections that 
have been or may be approved, made on the basis of lands in sections 16 and 36, 
claimed or reported to be mineral in character, or embiaced in forest or other reserva- 
tions, and wherein such base tracts have been, or may be, sold or encumbered by the 
State; provided, however, that new base need not be designated in any case wherein 
the United States has disposed of, by patent, the tract in lieu of which indemnity 
was claimed and granted. 

(3) That new and valid bases be designated by the State for approved selections in 
all cases wherein there have been, or may be, excesses in certifications occurring since 
March 1, 1877. 

(4) That lands in sections 16 and 36, which, under the provisions of the act of Con- 
gress approved March 1, 1877 (19 Stat., 267), are the property of the United States, 
and which have been sold or encumbered by the State, are to be selected by the State, 
ic being understood thao the requirements of publication of notice and the filing of 
nonmineral affidavits in support of such selections be waived by the Land Department 
of the United States. 

(5) That the State of California will enact such additional laws as may be necessary 
to carry into effect the plan of adjustment herein contained, and the Land Depart- 
ment of the Federal Government will favor and will use its good offices to have passed 



,6 EXCHANGE OF SCHOOL LANDS. 

and approved such legislation by Congress as may be necessary to consummate such 
plan. 

(6) That the Land Department will immediately proceed with the listing of all 
eelections made by the State where the base is free from objection and the laods 
applied for are subject to selection by the State; provided the governor of the State 
of California shall first agree to specify and state in a call or proclamation for a special 
or extraordinary session of the State legislature, to be made and held some time during 
the year 1911, as one of the purposes for which the legislature is so convened, the sub- 
ject and consideration of such legislation as may be required to consummate the within 
plan of settlement; and provided further, that if such necessary laws be not enacted 
at such special session the plan of adjustment herein contained may be deemed mthout 
force and effect. 

Under and in pursuance of this agreement the Governor of the 
State of California inchided in a call for an extraordinary session of 
the Legislature of California the provisions contained in this agree- 
ment, and thereunder, and on the 24th day of December, 1911, the 
Legislature of the State of California passed the following act : 

Chapter 21.— An act to authorize the adjustment and settlement of a controversy existing between the 
United States and the State of Cahfornia, in relation to the grants made by Congress to the State of 
California for the benefit of the public schools, and internal improvements, authorizing the conveyance 
of land by oflicers of the State for the purpose of making such adjustment and settlement, and making 
an appropriation to carry out the provisions hereof. 

[Approved December 24, 1911.] 

Whereas under the terms and provisions of certain acts of Congress of the United 
States 500,000 acres of land w-^re granted to the State for internal improvement and 
the sixteenth and thirty-sixth sections in each township, and lands in lieu thereof, 
were granted to the State of California for school purposes; and 

Whereas it is claimed by the United States that prior to March 1, 1877, there were 
listed to the State of California approximately 16,000 acres of land, in excess of the 
amount of land to which the State was justly entitled, also that the State has received 
indemnity for certain sixteenth and thirty-sixth sections of land assumed to be 
within the exterior boundaries of Mexican grants, which sixteenth and thirty-sixth 
sections were subsequently either wholly or partially excluded from such grants and 
subsequently .sold by the State, the total area being approximately 10,151 acres; 
also that the State has received indemnity for certain sixteenth and thirty-sixth 
sections, alleged to be mineral in character, which said school sections the State 
sold in place, either before or after receiving indemnity therefor, the total area being 
approximately 8,715 acres; also that the State received approximately 2,028 acres 
in excess of the 500,000-acre grant; and 

Whereas the Department of the Interior has for many years withheld from certifi- 
cation the greater part of the lieu land selected by the State, pending a settlement 
of said matters, and there remains to be listed to the State upward of 450,000 acres, 
which, if listed, would be subject to taxation: Now, therefore. 

The 'people of the State of California do enact as follows: 

Section 1. There shall be paid to the Federal Government by the State of Cali- 
fornia, acting through the officers hereinafter mentioned and in the manner and 
upon the terms and conditions hereinafter set forth, the sum of one and twenty-five 
one-hundredths dollars per acre for all excess certifications of indemnity school 
lands, which occurred prior to March 1, 1877, and for which said lands no payment 
has as yet been made to the United States. 

Sec. 2. The officers of the State of California mentioned in sections 3519 and 3520 
of the Political Code of said State are hereby authorized, empowered, and directed, 
in the manner in said sections provided, to convey to the United States by patent or 
otherwise such an amount of land in sections 16 and 36, situated in national forests 
or other reservations, as will equal in area all selections that have been heretofore 
listed or certified by the Government to the State of California, made in lieii of sec- 
tions 16 and 36, claimed or reported to be mineral in character, or embraced in forest 
or other reservations, and wherein such base tracts have been or may be sold or encum- 
bered by the State: Provided, however, That no lands shall be patented in any case 
wherein" it shall be found that the United States has disposed, by patent or otherwise, 
of the tract in lieu of which indemnity was claimed and granted. 

Sec. 3. The officers of the State referred to in section 2 hereof are hereby author- 
ized and directed to convey, by patent or otherwise, to the United States, in addition 



EXCHANGE OF SCHOOL LANDS. 7 

to the 12,000 acres heretofore granted, an amount of land equal in area to any additional 
excess in certifications occurring since March, 1877. 

The surveyor general of the State of California is hereby authorized and empowered 
to locate and select in the United States Land Offices, for the benefit of persons having 
certificates of purchase or patents from the State, lands in sections 16 and 36, which, 
under the provisions of the act of Congress approved March 1, 1877, and commonly 
known as the Booth Act, are claimed to be property of the United States, but which 
said lands have been heretofore sold or encumbered by the State. The said lands 
hereby authorized to be selected are lands which have been heretofore used or desig- 
nated by the State of California as basis for indemnity selections, and for which the 
State of California received indemnity, but which said lands in said sections 16 and 36 
the said State also sold or encumbered. For the purpose of making the selections 
hereby authorized to be made, the said surveyor general is hereby authorized and 
empowered to use and designate any basis or lands mentioned in section 3406a of the 
Political Code of the State of California, or any other basis, which may be proper or 
valid in making indemnity selections. 

Sec. 4. For the purpose of carrying into effect the terms and provisions of this act, 
the surveyor general of the State of California is authorized and dkected to ascertain 
and determine from the records of his office and the records of the Department of the 
Interior the amount of lands which should be conveyed to the United States and like- 
wise the number of acres of land as in this act provided for, which the State has, by 
the terms of this act, authorized and directed payment to be made, and after said facts 
have been ascertained and determined, the said officers of said State, referred to in 
sections 2 and 3 hereof, are hereby authorized and directed to make, execute, and 
deliver for said State, in its name and as its act and deed, any and all written agree- 
ments, deeds, patents, or conveyances necessary to carry out and consummate the 
terms of this act. 

Sec. 5. The sum of $25,000 is hereby appropriated, out of any moneys in the State 
treasury not otherwise appropriated, for the piu-pose of carrying out the provisions of 
this act and paying all necessary expenses of the sm'veyor general and attorney general 
in connection herewith, and the State controller is hereby authox-ized and du-ected to 
draw his warrant or warrants in favor of the United States, or the proper officers thereof, 
for such amount as may be payable to said United States under the terms hereof, and 
also to draw his warrant or warrants for the necessary expenses of the surveyor general 
and the attorney general in carrying out the provisions of this act, and the State 
treasurer is hereby directed to pay the same. 

This is the agreement between the Department of the Interior and 
the authorities of the State of Cahfornia — as between those two and 
not as affecting the rights, whatever they might be, between the State 
and private individuals. This land has been held, most of it, for 
years. Great values have been placed upon it by improvements and 
it has been assessed for many years. The Supreme Court of the 
State of California has lately held that the land was nonassessable, 
and therefore parties have been collecting back taxes from the 
counties; in other words, it is nontaxable in the State of California, 
and the conditions are such that there can be no adjustment between 
the State and private individuals and the Government; hence the 
general legislation. 

A letter of the attorney general of the State of California dated 
March 11, 1912, covering this subject, gives the full history and the 
purpose of the proposed bOl. It is as follows: 

State of California, Office of Attorney General, 

Sacramento, March 11, 1912. 
Hon. John E. Raker, 

Representative in Congress, Washington, D. C. 
Dear Sir: Your favor of February 16, 1912, inclosing copy of H. R. 19344, together 
with copy of a telegram received by you from Mr. Fred W. Lake in regard thereto, 
duly received. In reply to your inquiry as to the general situation, I beg to say: 

By the act of Congress of 1853 there was granted to the State of California the six- 
teenth and thirty-sixth sections of land in each township. If, before survey, those 
sections became subject to preemption or homestead claims, or were mineral in 



8 ^ EXCHANGE OF SCHOOL LANDS. 

character, or where deficiencies existed on account of fractional townships, the State 
then became entitled to indemnity for such loss, and might select other lands of equal 
acreage in lieu thereof. While the grant of these sections was one in praesenti, yet, as 
the title thereto did not pass until survey, the appropriation of the same by the Gov- 
ernment, or by one claiming through it, before such survey, lost to the State such 
section or sections so subject to such prior appropriation, and hence the State would 
be, in such instances, entitled to select other lands in lieu thereof; but as the title of 
the State does vest immediately upon survey, a reservation established by the Gov- 
ernment subsequently to survey, the exterior boundaries of which would include such 
sixteenth and thirty-sixth sections, would occasion no loss to the State, the title having 
already vested in the State and not being divested thereby. Hence the State, not- 
withstanding the fact that these sections might be within the exterior limits of national 
reservations created subsequent to survey, had full title and could sell or otherwise 
dispose of the same. (See Hibbard v. Slack, 84 Fed., 571, decided in 1897.) 

In the Hibbard case it was contended that, by virtue of the act of Congress of Feb- 
ruary 28, 1891, amending sections 2275 and 2276 of the Revised Statutes of the United 
States, the State of California was entitled to select other lands in lieu of sixteenth and 
thirty-sixth sections of school lands, situated within the exterior boundaries of a 
public reservation, where said sections were surveyed and became the property of 
the State prior to the date when the reservation was created, but the court held, as 
above stated, that such was not the fact. 

In 1901, however, Assistant Attorney General Van Devanter rendered an opinion, 
which was adopted by the Secretary of the Interior, to the effect that the State of 
California could so select other lands in lieu of such surveyed sections, and the depart- 
ment has, apparently, continued to hold to this view. 

After the amendment in 1891 of sections 2275 and 2276 of the Revised Statutes of 
the United States, above referred to, a great many selections were made by the State 
based upon surveyed school sections situated within the exterior limits of national 
forests or national reservations, which are still pending before the General Land Office 
at Washington for approval or rejection. So far as the General Land Office is con- 
cerned, it will in all probability recognize as valid bases surveyed school sections and 
certify other lands in lieu thereof. 

The State continued to make selections, using as bases therefor surveyed school 
sections situated in national reservations up to some time after the present surveyor 
general of California, Hon. W. S. Kingsbury, took office in 1907. In an endeavor on 
his part to administer the duties of his office in a careful manner, he discovered that 
some question did exist as to the validity of selections so made, and referred the 
question to me. As a result of my advice to him he discontinued making selections 
upon surveyed school sections until after the passage of the "Thompson Act," here- 
after referred to. 

The laws of California were such that after a selection was made, if the land selected 
(not the bases for the selection) was open to selection or entry, the register and receiver 
of the local land office thereupon notified the State land office of the acceptance of 
such selection, and thereupon a certificate of purchase was issued by the State for 
the selected land, although the title still remained in the United States and could 
not pass to the State until final action by the commissioner at Washington. The 
condition, therefore, that the present surveyor general was confronted with at the 
time he assumed office was this: Several hundred selections had been made in which 
the State had designated surveyed bases, concerning the validity of which some 
question might be raised. 

The State had issued to most of these State applicants certificates of purchase which 
also imder the law were assignable, and many had been assigned. The surveyor 
general and myself, after careful consideration of the matter, believed that, under the 
circumstances," legislation should be provided, to the end that if the surveyed sections 
used as bases were not available as such when used they should be made so, in order 
that holders of these certificates of purchase might secure the land described therein. 
For this purpose the legislature of California, in 1909, provided that surveyed school 
sections should be valid bases, and upon the listing of the selected lands to the State 
the title to such surveyed school sections should immediately vest in the United States. 
These provisions of the law of California so passed in 1909 were sufficient, so far as the 
State was concerned, to pass the title to these surveyed school sections to the Federal 
Government upon the listing of lands in lieu thereof, but if the provisions of sections 
2275 and 2276 of the Revised Statutes of the United States were insufficient to author- 
ize^the General Land Office to accept selections made upon surveyed school sections, 
then the law of California would be of no avail; hence, although the department, as 
above stated, seems to be willing to accept such selections, we deem it important to 



EXCHANGE OF SCHOOL LANDS. 9 

have^an^act passed by Congress to the same effect. The act introduced by yourself is 
intended to accomplish this purpose. 

Shortly after Mr. Kingsbury took office as surveyor general of California, in January 
of 1907, he also discovered that indemnity or lieu lands were almost entirely controlled 
by F. A. Hyde. Hyde was enabled to control these lands by reason of the fact that 
until a section of school lands was placed within the limits of a reservation created by 
proclamation of the President, no lands could be selected in lieu thereof, nor could 
any applicant file an application for lieu lands in the State land office. For years Mr. 
Hyde was enabled to secure the first information as to the creation of national reser- 
vations, which thereby enabled him, under the laws of California, to file applications 
before any other person had the necessary information. To correct this condition and 
to permit the State to secure the benefit of controlling these lieu-lands selections, 
Senator Thompson, the surveyor general, and myself drafted a bill which is known as 
the "Thompson bill," and which was passed by the legislature in 1909, which was the 
first session of the legislature after Gen. Kingsbury took office. This bill withdrew all 
such sixteenth and thirty-sixth sections from sale or use by any person and provided 
a method of sale at public auction. The plan has worked very well and has enriched 
the State to the extent of several hundred thousands of dollars; the last sales bringing 
close to $10 per acre instead of $1.25, as they had previous to that time. It also had 
the effect of stopping the activities of F. A. Hyde and those operating with him. 

At these sales no land is sold directly, but the basis is sold and a certificate of indem- 
nity or scrip issued, which is used as the basis for a selection from vacant Government 
land. 

In the latter part of 1908 we began work on proposed legislation which we deemed 
necessary to correct the conditions arising by reason of the facts referred to above 
which resulted in the passage of the so-called "Thompson Act." This act you will 
find incorporated in the Political Code (sees. 3398 to 3408e) . The main objects desired 
to be attained by such legislation were to enable the State to control the bases for 
indemnity selections, and likewise to make surveyed sections situated within national 
reservations available as bases for lieu selections. By making such surveyed sections 
available as bases, not only would the doubt as to the regularity of selections thereto- 
fore so made be removed, but, likewise, it would bring to the State a large increase in 
price theretofore received for lands, as these sections in place were, to a large extent, 
quite valueless, whereas if used as bases for lieu selections they would bring as demon- 
strated by the operations under the Thompson Act, from $6 to |10 per acre. 
- Mr. Lake, representing some 300 or more applicants, commenced the attempted 
filing of applications on these surveyed school sections in place in the latter part of 
1908 and continued to present applications until the Thompson Act went into effect. 
He apparently attempted to cover every school section situated within the limits of 
national reservations, and particularly did he attempt to cover all such sections which 
had been used as bases for indemnity selections. If he is successful, the greater por- 
tion of all such selections made for the past 15 or 20 years will be rejected by the 
General Land Office at Washington, although the State has already issued, and there 
have been outstanding for years in a great many instances, certificates of purchase for 
most of these selected lands. The surveyor general refused to file or to recognize the 
applications so presented by Mr. Lake for these school sections which had been used as 
bases for lieu-land selections, and Lake has now commenced in the courts of California, 
in the names of these applicants, proceedings to enforce the filing of the same. Just 
as soon as the legislature met in 1909 we attempted to correct the condition of things 
by withdrawing such school sections so situated within national reservations and pro- 
viding that they should be used only as bases for indemnity selections, and also by 
providing that where already so used as bases, such bases should be good and valid; 
but Lake's contention is that in view of the fact that the applications of the persons 
represented by him were presented prior to the withdrawal of such lands from sale 
in place, they acquired a vested right which the subsequent legislation could not 
destroy. I am strongly of the opinion that this contention will not be upheld by the 
courts, as it has been held many times that a person gains no vested rights by the mere 
presentation or filing of an application, and notwithstanding such fact the legislature 
still has the right to withdraw the lands from sale, or to otherwise dispose of them. 
Mr. Lake objected very strenuously before the legislative committees to the passage 
of the acts withdrawing these lands from sale, but the Legislature of California, with 
full knowledge of all the facts, withdrew the same and upheld the position we have 
taken in every respect. 

Of course the many applicants represented by Mr. Lake did not know the con- 
ditions prevailing, and in most if not all instances had never seen the lands applied 
for; but Lake, knowing that some question existed as to the validity of the selections 
made upon surveyed bases, saw a chance of either securing these school sections in 



lO EXCHANGE OF SCHOOL LANDS. 

place or so clouding the title thereto as to cause the Land Department of the Gov- 
ernment to reject selections based thereon. Of course, among the selected lands 
will be found many thousands of acres extremely valuable, and it is easy to see that 
if the applicants for these selected lands, or their assignees, find that their selections 
are to be rejected by reason of Mr. Lake's activities in attempting to secure the base, 
they would be willing to pay a large amount per acre to settle with him. 

Under all the circumstances, I sincerely believe that there is no other course open 
but for the State to use every fair and honorable means to make these surveyed sec- 
tions available as bases for lieu selections. To a certain extent the predecessors in 
office of Gen. Kingsbury were justified in using surveyed school sections as bases, in 
view of the opinion of Assistant Attorney General Van Devanter, above referred to, 
and also in view of the attitude of the department recognizing the right of the State 
to do so. At all events it would seem to me that the equalities are all on the side of 
the State lieu-land applicants, and that the persons represented by Mr. Lake have 
no just complaint because they acted through him entirely, and he knew the exact 
situation when he attempted to make his filings, and did so knowing that if he was 
eventually successful, the selections made for the lieu-land claimants must be rejected 
by the department. 

I trust that you will pardon the length of this letter, but the matter is of such impor- 
tance that I deemed it advisable to acquaint you with the facts. 

Your wire of 10th instant states, "Public Lands Committee will hear House bill 
No. 19344, in reference to lieu lands, on March 20," duly received, and I take it that 
the information contained in this communication answers any questions you desire 
answered in said telegram. 

I desire to thank you for your interest in this matter, and assure you that your 
efforts are thoroughly appreciated. 

Yours, very truly, U. S. Webb, Attorney General, 

By E. B. RowEN, Assistant. 

A letter to the Department of the Interior on March 29, 1912, and 
their reply under date of April 2, 1912, as follows: 

March 29, 1912. 
Hon. AValter L. P^isher, 

Secretary of the Interior, Washington, D. C. 

Dear Sir: On February 2, 1912, I introduced a bill (H. R. 19344) to adjust the 
land differences between the United States and the State of California. This bill 
has been referred to the Secretary of the Interior and a favorable report made thereon, 

The matter has been before the committee and will be considered Tuesday, April 2, 
1912, at 10 o'clock a. m., by the Committee on the Public Lands. There have been 
two amendments suggested to the bill by various parties — ona by Mr. Lake, of Oak- 
land, and the other by Mr. Bolton, of San Francisco. 

I therefore telegraphed to W. S. Kingsbury, State surveyor general, on March 25 
in relation to the Lake amendment, as follows: 

Washington, D. C, March 25, 1912. 
Hon. W. S. Kingsbury, 

State Surveyor General, Sacramento, C'al.: 
Lake submits to committee proposed amendment to House bill 19344, as follows: 
'^Provided, however, That nothing in thi? act and no exchange made or ratified 
under the provisions of this act shall impair the rights or claims of any persons to 
any land ceded, conveyed, or waived to the United States as a basis for such exchanges 
where such rights or claims are held adversely to such cession, conveyance, or waiver." 
Wire me immediately your position upon this amendment proposed by Lake. 

and on March 26 received his telegraphic answer, as follows: 

Sacramento, Cal., March 26, 1912. 
Hon. John E. Raker, 

Member oj Congress, Washington, D. C: 
Am unalterably opposed to Lake's proposed amendment. The applications for 
surveyed school section which the State has used as base were presented by Lake 
with the full knowledge on the part of Lake that the State had used the land as base 
for years before. He presented the applications. The State immediately rejected 
the application, and, in my opinion, Lake has no equitable claim; and the legisla- 
ture later repudiates Lake's claim and has done all it could to cancel the applications. 
See Statutes of California, 1911, page 1408. Lake's proposed amendment would de- 



EXCHANGE OF SCHOOL, LANDS. 11 

feat the title of purchasers of 200,000 acres of lieu land sold to them in good faith by 
the State, by taking the base from under the selected land. Lake is relying solely on 
the technical point that the State had no right to use surveyed base. Do not think 
that the Federal Government should hesitate about rejecting Lake's amendment, in 
view of attitude of State. 

W. S. Kingsbury, 

State Surveyor General. 

On the same day I telegraphed to Mr. Kingsbury in regard to the Bolton amend- 
ment, which telegram was as follows: 

Washington, D. C, March 25, 1912. 
Hon. W. S. Kingsbury, 

State Surveyor General, Sacramento, Cal.: 
Bolton desires to have an amendment to House bill No. 19344, as follows: "Pro- 
vided, That the Secretary of the Interior shall not approve any exchange of lands if 
the land selected by the State be, at the time of approval, within the exterior limits 
of any land withdrawn under the provisions of an act entitled 'An act to authorize 
the President of the United States to make withdrawals of public lands in certain 
cases,' approved June 25, 1910." 
Wire me your position and what you have to say about the proposed amendment. 

John E. Raker, M. C. 
and on March 26 received his reply, which is as follows: 

Sacramento, Cal., March 26, 1912. 
Hon. John E. Raker, 

Member of Congress, Washington, D. C: 
The State is opposed to the amendment submitted by Bolton. By consenting 
to the proposed amendment the State would be waiving the rights of State applicants, 
if such rights vested by virtue of the selection made by the State. The State can not 
consent to this. Whatever rights the State applicant acquired by virtue of the selec- 
tion made by the State should be saved to the applicant. In other words, no provi- 
sion should be inserted which would in any way attempt to take from the State appli- 
cants rights which they acquired by virtue of the selection made by the State for them. 

W. S. Kingsbury, 

State Surveyor General. 

On March 25, 1912, I telegraphed the proposed amendment to Attorney General 
Webb, which telegram was as follows: 

Washington, D. C, March 25, 1912. 
Hon. U. S. Webb, 

Attorney General, Humboldt Bank Building, San Francisco, Cal.: 

Lake submits to committee proposed amendment to House bill 19344, as follows: 

" Provided, however, That nothing in this act and no exchange made or ratified under 

the provisions of this act shall impair the rights or claims of any person to any lands 

ceded, conveyed, or waived to the United States as the basis for such exchanges 

where such right or claims are held adversely to such cession, conveyance, or waiver." 

Wire me immediately your position upon this proposed amendment by Lake and 

whether or not, if adopted, it would not defeat the proposed legislation. 

John E. Raker, M. C. 
and on March 26, 1912, received his reply, as follows: 

Sacramento, Cal., March 26, 1912. 
John E. Raker, 

Member of Congress, Washington, D. C: 
The proposed amendment by Lake would undoubtedly injure some two or three 
hundred State applicants, involving several hundred thousand acres of land. The 
State of California, by its legislature, has considered matters of claims of these various 
applicants and has decided matter in favor of State lieu-land claimants. There is 
no question but that the equities are all in favor of lieu-land claimants. Lake's 
proposed amendment is for the purpose of aiding him in clouding the base lands on 
which these State lieu-land selections stand, and, if he is successful in litigation in 
court, to defeat these lieu-land claimants altogether by taking the bases from under 
their selections or to force them to settle with him. I am opposed to amendment. 
If he has any vested rights, as he claims he has, then bill introduced by you in Con- 
gress can not injure him. My previous letter to you explains situation more in detail. 
Telegram on Bolton amendment to-morrow. 

U. S. Webb, 
Attorney General, California. \ 



12 EXCHANGE OF SCHOOL LANDS. 

On March 26, 1912, I telegraphed Bolton's amendment to Attorney General Webb, 
which telegram is as follows: 

Washington, D. C, March 25, 1912. 
Hon. U. S. Webb, 

Attorney General, Humboldt Bank Building, San Francisco, Cal.: 
Bolton desires to have an amendment to House bill No. 19344, as follows: 'Pro- 
vided, That the Secretary of the Interior shall not approve any exchange of lands if 
the land selected by the State be, at the time of approval, within the exterior limits 
d!f any land withdrawn under the provisions of an act entitled 'An act to authorize 
the President of the United States to make withdrawals of public lands in certain 
cases,' approved June 25, 1910." 

Wire me your position and what you have to say about the proposed amendment. 

John E. Raker, M. 0. 

And on March 28 received his answer thereto, which is as follows: 

Sacramento, Cal., March 28, 1912. 
Hon. John E. Raker, 

Member of Congress, Washington, D. C: 
State, in my judgment, can not indorse Bolton amendment. Bolton fears that bill 
introduced by you will injure rights of his clients who are claiming as mineral claim- 
ants. The State has selected certain lands for State applicants whose applicatioris 
are on file in State land office. They claim that as land was subject to selection their 
rights attach. If this is so, they should not be defeated by Bolton's amendment. 
Amendment provides that "Secretary of Interior shall not approve any exchange of 
lands if the land selected by the State be, at the time of approval, within the exterior 
limits," etc. On face of amendment this would defeat State applicants. Bill intro- 
duced by you was prepared by Department of Interior. Any amendment to bill is 
dangerous, as it may defeat entire object of bill. If jDermitted, it should be so worded 
that all rights State applicants require by the selections made for them by the State 
are carefully guarded and protected, and for such purpose such amendment must be 
very carefully worded and considered. 

U. S. Webb, Attorney General. 

Will you kindly make full report on these matters, so that I may have them at least 
as early as Monday for the use of the committee on Tuesday? I also told the committee 
I would have some one from the department at that time. I would like to have a 
representative from the Department of the Interior who is familiar with this subject 
on the date set for the hearing, as the attorney general advises me that this matter 
has been given full attention by your department from the officers in California. 
I am, yours, most truly, 

John E. Raker, M. C. 

Department of the Interior, 

Washington, April 2, 1912. 
Hon. John E. Raker, 

House of Representatives. 

Dear Sir: I have your letter of March 29, 1912, advising that two proposed 
amendments have been presented to H. R. 19344, "A bill to authorize the Secretary 
of the Interior to exchange lands for school sections within Indian, military, national 
forest, or other reservations," the first by Mr. Lake, of Oakland, Cal., the other by 
Mr. Bolton, of San Francisco, Cal. You quote the proposed amendments and com- 
ments thereon addressed to you by the State surveyor general and attorney general 
of the State of California, and ask for report upon the matters therein involved. 

The bill in question, as introduced, is largely declaratory of the act of February 28, 
1891 (26 Stat., 796), amending sections 2275 and 2276 of the United States Revised 
Statutes, and in terms authorizes the Secretary of the Interior to make exchanges of 
lands with the several States for those lands granted in aid of common schools, whether 
surveyed or unsurveyed, which lie within the exterior limits of any Indian, military, 
national forest, or other reservation. In the opinion of this department the authority 
to make such exchanges now exists in said sections 2275 and 2276, Revised Statutes, 
as amended by the act of February 28, 1891, supra, and the department has uniformly 
so ruled since January 30, 1899. As stated in decision in the case of the State of Cali- 
fornia (28 L. D., 57-61), the legislation under which forest reservations were author- 
ized was pending before Congress at the time when the act of February 28, 1891, 
supra, was under consideration and became a law only a few days later, "Congress 
knew when these acts were under consideration that such reservations would neces- 



EXCHANGE OF SCHOOL LANDS. 13 

sarily embrace in many instances lands which had been granted, reserved, or pledged 
to States and Territories for the use of public schools. It surely knew also that these 
reservations would frequently contain surveyed townships or portions thereof within 
which would be the school sections 16 and 36, which had passed to the States or were 
reserved or pledged to the Territories, and that these sections, entirely surrounded by 
Government lands and sometimes far within the boundaries of the reservation, would 
be of little or no benefit — as alleged to be the fact in the case at bar — ^to the States 
or Territories while the reservations exist." 

The conclusions was therefore reached that where a forest reservation includes within 
its exterior limits a school section surveyed prior to the establishment of the reser- 
vation the State, under the authority of the first proviso to section 2275 of the Revised 
Statutes, amended, may be allowed to waive its right under such section and select 
other lands in lieu thereof. The same question was involved in the cases of Dunn 
et al. V. State of California (30 L. D., 608), the Territory of New Mexico (29 L. D., 364, 
399; 34 L. D., 599), and the State of California (34 L. D., 613), and the same conclusion 
reached. 

The language of the statute in question of itself appears conclusive upon the question 
involved, "and other lands of equal acreage are also hereby appropriated and granted, 
and may be selected by said State or Territory, where sections 16 or 36 are mineral 
land, or are included within any Indian, military, or other reservation, or are other- 
wise disposed of by the United States: Pi^ovided, Where any State is entitled to said 
sections 16 and 36, or where said sections are reserved to any Territory, notwithstand- 
ing the same may be mineral land or embraced within a military, Indian, or other 
reservation, the selection of such lands in lieu thereof by said State or Territory shall 
be a waiver of its right under said sections." (Sec. 2275, amended.) 

Therefore the report of this department, dated February 19, 1912, favoring the 
enactment of H. R. 19344 was made only upon the theory that if any doubt has hereto- 
fore existed as to the meaning and effect of the clause of section 2275, Revised Statutes, 
above quoted, it will be removed by the enactment of the measure and not because of 
any belief on its part that such exchanges may not be effected under existing law. 

The amendment suggested by Mr. Lake is to the effect that nothing in said H. R. 
19344, if enacted, " shall impair the rights or claims of any persons to any lands ceded, 
conveyed, or waived to the United States as a basis for such exchanges where such 
rights or claims are held adversely to such cession, conveyance, or waiver." 

The communication addressed to you by the surveyor general of California recites 
that Lake has heretofore made applications to purchase surveyed school sections 
within reservations which had theretofore been used as the basis for indemnity 
selections by the State, which applications were immediately rejected. It is further 
stated that Lake had full knowledge of the fact that the State had used such base 
lands long before his application to purchase same, and that he relies solely upon the 
technical allegation that the State had no right to surrender school sections surveyed 
prior to the creation of the reservations as a basis for indemnity. The attorney general 
of California advises you in the same connection that Lake's proposed amendment is 
for the purpose of aiding him in clouding the title to the base lands upon which the 
State lieu selections rest, permitting him, if successful in certain litigation now pending 
in the courts of California, to defeat the claims of the persons who have purchased 
lieu-section lands from the State or force them to settle with him. 

It appears that the Legislature of the State of California passed an act May 1, 1911 
(Laws of California, 1911. p. 1408), providing that all applications theretofore filed 
with the State for sections 16 or 36 within the limits of reservations and upon which no 
certificates of purchase had issued shall be canceled by the surveyor general and held 
to be null and void. 

While this department has no official connection with or information concern- 
ing the attempted purchases by Mr. Lake of such school sections, it can not con- 
cede the correctness of his contention, as disclosed by the State surveyor general, 
but entertains a contrary view, as indicated by its decisions hereinbefore cited. 
If Mr. Lake or other persons have vested rights in or to any such sections 16 or 36, 
H. R. 19344, if enacted, can not defeat the same, while the adoption of the ainend- 
ment proposed might be construed as a recognition that valid claims do exist to 
such school sections heretofore presented and in some instances accepted, as a suffi- 
cient basis for school indemnity selections. The department is emphatically of the 
opinion that the proposed amendment should not be adopted. 

The amendment proposed by Mr. Bolton is to the effect that the Secretary of 
the Interior ' ' shall not approve any exchange of lands if the lands selected by 
the State be, at the time of approval, within the exterior limits of any land with- 
drawn under the provisions of an act entitled 'An act to authorize the President of 
the United States to make withdrawals of public lands in certain cases,' approved 
June 25, 1910." 



14 EXCHANGE OF SCHOOL LANDS. 

The State surveyor general and attorney general advise you that the State of Cali- 
fornia is opposed to this amendment on the ground that under it the State would 
waive the rights of persons who have purchased lieu-selection lands from the State. 
The attorney general states that — 

"Bolton fears that bill introduced by you will injure rights of his clients who are 
claiming as mineral claimants. The State has selected certain lands for said appli- 
cants whose applications are on file in the State land office. They claim that as 
land was subject to selection their rights attach. If this is so, they should not be 
defeated by Bolton's amendment." 

It appears from the records of this department that indemnity school selections 
were filed by the State of California upon unreserved public land in lieu of school 
sections within reservations, and that thereafter the lands covered by the indemnity 
school selections were, with adjoining tracts, withdrawn under the provisions of the 
act of Congress approved June 25, 1910 (36 Stat., 847), for classification in aid of legis- 
lation and for other public purposes, and that such State selections are now suspended 
and pending. In this connection it also appears from the records of this department 
that certain mineral claimants, for whom Mr. Bolton appears as counsel, are contend- 
ing before this department that certain of the State selections in question should be 
rejected and canceled by the Secretary of the Interior because of the existing with- 
drawals, and the proposed amendment would seem designed to effect this end through 
legislation. H. R. 19344 does not direct or compel the Secretary of the Interior to 
approve these or other indemnity selections, but leaves him the same discretionary 
power that he now possesses in such cases. 

Under section 2276, Revised Statutes, amended, lands selected in lieu of school 
sections surrendered under section 2275, Revised Statutes, are required to be "unap- 
propriated surveyed public lands, not mineral in character." The uniform holding 
of the courts and repeated rulings of the department with reference to indemnity 
school selections and other selections requiring approval of the Secretary of the Interior 
are to the effect that no vested rights are secured through such selections until same 
have been duly approved by the Secretary of the Interior, all proceedings prior 
thereto amounting to but a tender of a selection. 

It is thus apparent that full power and authority rest with the Secretary of the 
Interior under existing law, and will rest with him under IT. R. 19344, if enacted, to 
adjudicate such selections and any claims arising in connection therewith, as well as 
to give due effect to any withdrawals made under the provisions of the act of June 25, 
1910, supra. 

The department further believes that the Secretary of the Interior should not be 
by act of Congress deprived of authority to approve such selections as to the lands 
covered thereby which are found to be nonmineral in character and otherwise subject 
to selection. Furthermore, selections made, but not approved, prior to the withdrawal 
of the selected lands under the act of June 25, 1910, are held subject to action under 
such withdrawal, and are not approved, certified, or patented during the existence of 
such withdrawal. 

It is further noted that this amendment relates to lands "within the exterior limits 
of any land withdrawn," etc. This is specially objectionable, as a number of tracts 
within the exterior limits of a withdrawal may be excluded therefrom, and the amend- 
ment should therefore be limited at least to the lands withdrawn. Being of opinion, 
however, that no good reason exists for this amendment, I must recommend that it be 
not adopted. 

I have examined the opinion of Judge Wellborn in the case of Hibberd v. Slack 
(84 Fed. Rep., 571), in which it was held that the act of February 28, 1891, amending 
sections 2275 and 2276, Revised Statutes, does not contemplate an exchange of lands 
between a State and the United States, but only indemnity for loss to a State because 
of inclusion of school lands within a forest or other reservation prior to their identifi- 
cation by the Government survey, and I find that a contrary rule has prevailed in this 
department since January 30, 1899, ex parte State of California (28 L. D., 57); Dunn 
et al. V. California (30 L. D., 608); opinion of assistant attorney general, now Justice 
Van Devanter (29 L. D., 364); also 29 L. D., 399; opinion of Assistant Attorney Geneial 
Campbell (34 L. D.. 599); ex parte State of California (34 L. D., 613). 

After a careful review of the several decisions bearing upon this subject, and 
especially in view of the fact that the act of February 28, 1891, was a general adjustment 
act, I see no reason to depart from the present holding of the department on this subject. 

In accordance with your request, I will be pleased to have a representative of this 
department appear before the Committee on the Public Lands at 10 o'clock a. m. 
April 2, 1912. 

Very respectfully, Samuel Adams, 

First Assistant Secretary. 

o 



m 



